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Administrative Law - Constitutional Validity of the One-House Veto - Chadha V Land & Water Law Review Volume 17 Issue 1 Article 10 1982 Administrative Law - Constitutional Validity of the One-House Veto - Chadha v. Immigration and Naturalization Service Rodney P. Lang Follow this and additional works at: https://scholarship.law.uwyo.edu/land_water Recommended Citation Lang, Rodney P. (1982) "Administrative Law - Constitutional Validity of the One-House Veto - Chadha v. Immigration and Naturalization Service," Land & Water Law Review: Vol. 17 : Iss. 1 , pp. 241 - 256. Available at: https://scholarship.law.uwyo.edu/land_water/vol17/iss1/10 This Note is brought to you for free and open access by Law Archive of Wyoming Scholarship. It has been accepted for inclusion in Land & Water Law Review by an authorized editor of Law Archive of Wyoming Scholarship. Lang: Administrative Law - Constitutional Validity of the One-House Vet CASE NOTES ADMINISTRATIVE LAW- Constitutional Validity of the One-House Veto. Chadha v. Immigration and Naturalization Service, 634 F.2d 408 (9th Cir. 1980), prob. juris. noted, 50 U.S.L.W. 3244 (U.S. Oct. 5, 1981) (No. 80-1844) On December 16, 1975, the United States House of Representatives disapproved the suspension of Jagdish Rai Chadha's deportation.' That action prompted a judicial review of the constitutionality of the one-house veto provision in the Immigration and Nationality Act2 and a finding by the Ninth Circuit that the provision is unconstitutional.3 Under Section 244 of the I.N.A. the Attorney General has discretion to sus- pend deportation if the alien has been in the U.S. for over seven years, is of good moral character, and would suffer ex- treme hardship if deported. However, the Attorney General's suspension is subject to the legislative veto of either house of Congress.4 Chadha entered the United States as a non-immigrant stu- dent in 1966, and his visa expired in 1972. Deportation pro- ceedings were begun against him in 1974. At the deportation hearing Chadha admitted his deportable status, but requested a suspension of deportation according to Section 244(aXl) of the I.N.A. 5 Finding the statutory suspension criteria met and exercising his administrative discretion, the hearing officer suspended Chadha's deportation. The House exercised the legislative veto and overruled the hearing officer, rejecting the suspension. The hearing officer then reconvened the deporta- tion proceedings and issued a final order of deportation. Following an unsuccessful appeal to the Board of Immigration Appeals, Chadha appealed to the United States Court of Ap- 6 peals, Ninth Circuit. CopyrightO 1982 by the University of Wyoming. 1. 121 CONG. REc. 40,801 (1975). 2. 8 U.S.C. S 1254(c)(2) (1976). The one-house veto, as reserved in this Act, allows either the Senate or the House to pass a resolution stating that it does not approve of the suspension of deportation. If passed, the veto overrides a prior suspension decision made by the At- torney General, who must then deport the alien. [Immigration and Nationality Act is hereinafter cited in text as I.N.A.J. 3. Chadha v. Immigration and Naturalization Service, 634 F.2d 408, 411 (9th Cir. 1980) [hereinafter cited in text as Chadha]. 4. 8 U.S.C. S 1254 (1976). The Act actually establishes criteria for two categories of aliens, with the first category being "deportable aliens except those in second category" and the second category being "deportable aliens whose violations are aggravated." GORDON & ROSENFIELD, 2 IMMIGRATION LAW AND PROCEDURE § 7.9b, at 7-135 to 7-137 (rev. ed. 1981). Chadha fell within the first category. 5. Chadha v. Immigration and Naturalization Service, supra note 3, at 411. 6. Id. Judicial review of orders of deportation and exclusion is provided for in 8 U.S.C. 5 1105a(a) (1976). In this case, the legislative veto was followed by a reconvened deporta- tion proceeding and a final order of deportation, and was therefore held to be subject to judicial review. Published by Law Archive of Wyoming Scholarship, 1982 1 Land & Water Law Review, Vol. 17 [1982], Iss. 1, Art. 10 242 LAND AND WATER LAW REVIEW Vol. XVII On appeal, Chadha challenged the constitutionality of the one-house legislative veto of deportation suspension authoriz- ed by Section 244(c)(2) of the I.N.A. 7 on the grounds that the veto violated the separation-of-powers doctrine." The Ninth Circuit resolved jurisdiction and justiciability questions in favor of Chadha and reached the merits of the case.9 The court held that the one-house veto provision in Section 244(cX2) of the I.N.A. was a "Prohibited legislative intrusion upon the Ex- ecutive and Judicial branches" and unconstitutional under the separation-of-powers doctrine. 10 This Note first reviews the legislative veto mechanism, arguments concerning the constitutionality of that mechanism, and the composition and application of the separation-of-powers doctrine. Secondly, the Chadha decision and its implications are analyzed. It is suggested here that the method of analysis used by the Chadha court is a reflection of the separation-of-powers analysis presented by the United States Supreme Court in Nixon v. Administrator of General Services." However, by going beyond Nixon in its careful analysis, the Chadha decision may serve as a paradigm for future application of the separation-of-powers doctrine to legislative veto measures. BACKGROUND: THE LEGISLATIVE VETO A legislative veto is power reserved in enabling legislation to the legislature to repeal or modify agency action 12 without 7. 8 U.S.C. S 1254(cXlX2) (1976) states, in part: (cX1) If the deportation of any alien is suspended under the provisions of this subsection, a complete and detailed statement of the facts and pertinent provi- sions of law in the case shall be reported to the Congress with the reasons for such suspension .... (2) In the case of an alien specified in paragraph (1) of subsection (a) of this section-if... either the Senate or the House of Representatives passes a resolu- tion stating in substance that it does not favor the suspension of such deporta- tion, the Attorney General shall thereupon deport such alien .... If... neither the Senate nor the House of Representatives shall pass such a resolution, the Attorney General shall cancel deportation proceedings. 8. The case reached appeal in a rather unusual posture since the respondent, Immigration and Naturalization Service, agreed with the plaintiff that S 244(cX2) was unconstitu- tional. The court, relying on past precedent, requested and received amici curiae briefs from the House of Representatives and the Senate. Chadha v. Immigration and Naturalization Service, supra note 3, at 431. 9. For a brief overview of the jurisdiction and justiciability questions and a concise discus- sion of the political question in this case, see generally 22 HARv. INT'L. L.J. 423 (1981). 10. Chadha v. Immigration and Naturalization Service, supra note 3, at 411-20. 11. 433 U.S. 425 (1977) [hereinafter cited in text as Nixon]. An issue in this case was whether the Presidential Recordings and Materials Preservation Act of 1974 which attempted to regulate the disposition of materials within the executive branch violated the separation- of-powers doctrine. The Court held that the Act did not violate the doctrine. 12. Henry, The Legislative Veto: In Search of ConstitutionalLimits, 16 HARV. J. LEGIS. 735 (1979). https://scholarship.law.uwyo.edu/land_water/vol17/iss1/10 2 Lang: Administrative Law - Constitutional Validity of the One-House Vet 1982 CASE NOTES 243 following the constitutionally mandated formalities of statutory enactment. 13 The legislative veto may take different forms including concurrent resolution, simple resolution, com- mittee approval or disapproval, and even committee chairman approval or disapproval. 14 It may vary according to the way it is expressed, i.e., negative or affirmative, and the majority re- 15 quired for its imposition-simple, absolute, or two-thirds. The legislative veto has been the subject of numerous law review articles,' 6 congressional hearings,' 7 and even statements by the executive branch.' 8 There is, however, little federal case law. Prior to the Chadha decision, only the Court of Claims in Atkins v. United States had ruled on the constitu- tionality of a legislative veto. 19 In Atkins, the legislative veto in the Federal Salary Act was held constitutional. 20 At the state level, approximately thirty-four states have legislative review or veto legislation for administrative rules and regulations. 21 State court decisions on the constitution- 13. U.S. Const. art. I, S 7. 14. Cooper & Cooper, The Legislative Veto and the Constitution, 30 GEO.WASH. L. REv. 467, 468 (1962); Ginnane, The Control of Federal Administration by Congressional Resolu- tions and Committees, 66 HARV. L. REV. 569 (1953). 15. Cooper & Cooper, supra note 14, at 468-69. 16. For useful articles other than those cited in note 14 see generally Nathanson, Separation of Powers and Administrative Law: Delegation,the Legislative Veto, and the Independent Agencies, 75 Nw. U.L. REV. 1064 (1981); Dixon, The CongressionalVeto and Separation of Powers: The Executive on a Leash? 56 N.C. L. REv. 423 (1978); Schwartz, The Legislative Veto and the Constitution-A Reexamination, 46 GEo. WASH. L. REV. 351 (1978); Miller & Knapp, The Congressional Veto: Preserving the Constitutional Framework, 52 IND. L.J. 367 (1977). 17. See, e.g., Regulation Reform Act of 1979: Hearings on H.R. 3268 Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 96th Cong., 1st & 2d Sess. (1979-1980); Regulatory Reform: Hearings Before the Sub- comm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 96th Cong., 1st Sess. (1979). 18. See Cooper & Cooper, supra note 14, at 470 n.11.
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